John Wooding is a trainee solicitor in London, with experience in advising on human rights issues

The military commander of the United States's
efforts in Afghanistan, General David H Petraeus, announced on 10 May 2009 that he was appointing a
senior colleague to conduct an investigation into the conduct of US air-strikes
in Afghanistan. This follows a week when as many as 150 Afghan civilians may
have been killed in such strikes in the west of the country, an outcome that
has provoked demonstrations by Afghan students and protest from the country's president, Hamid Karzai.

The phenomenon of non-combatants being killed and wounded
accidentally in the course of air-assaults intended to hit military targets has
been a consistent feature of the wars of the 2000s in (for example) Afghanistan, Iraq, Pakistan, Gaza, and Lebanon.
The details of each incident are as varied as these locations, yet the media
reporting-cycle tends to settle into a familiar, constantly repeated pattern:

* the military's initial press-release
describes a precision-strike on a group of militants

* a claim emerges that non-combatants have died in the
relevant attack

* the military responds by arguing that the
civilians' non-combatant status had been compromised, either by participation
of some of them in (for example) guerrilla action or by the use of civilian
locations for military purposes

* a series of claims and counter-claims are made about
the numbers and identity of those killed and injured

* the media caravan loses interest and moves
on, leaving the competing accounts to be investigated (if they are) by those
with the resources to do so - with little expectation of high-level publicity
being attached to their findings.

Paul Rogers's weekly column on openDemocracy
has frequently addressed the issue of air-war and civilian deaths in
Afghanistan, Iraq, Pakistan, Lebanon and Gaza. A selection of relevant
articles:

"Drone wars" (16 April 2009) These incidents and their brief media trail form part of the background
noise of international politics. They
are always "there", but so rarely followed up. In particular, the voices of the
victims and their relatives are almost never heard.

This is, as implied above, in part a problem
for the media: of access, attention-span, independence and responsibility (see
Eric V Larson & Bogdan Savych, Misfortunes
of War: Press and Public Reactions to Civilian Deaths in Wartime [Rand Corporation, 2006]). But it is also, I
would argue, one for international humanitarian law. For the law itself as it
stands has allowed a "culture of impunity" to envelop such incidents. This
brief article poses the question: how can the protection afforded to non-combatants against "accidental"
air-strikes and other military attacks be improved?

An
ethical dimension

The principle in international law known as jus
cogens
- which "compels" universal and non-derogable observation on fundamental
matters such as genocide or slavery - requires that states engaged in military
action take precautions to avoid confusing non-combatants and combatants across a range
of activities: weapons-selection, timing, and intelligence verification among
them.

The problem arises that in the latter set of
cases this duty is in practice highly contextual, and may be hard to observe in
absolute terms. The legal scholar and former director of legal services of the
British army, APV Rogers, has argued that the circumstances in which a
state acts in matters such as targeting are crucial, and that it is not
possible to lay down general exemptions.

Does this subjectivity make the law on (for
example) targeting a sham? No, because the lack of an absolute requirement to
take precautions in particular cases is not in itself fatal to the law. Rather,
the subjective approach is designed to reflect the delicate balance inherent in
international humanitarian law between the waging of war and the obligation
always to reflect common humanity. If the law works as intended, planners and
troops will be inculcated with a deeply ingrained sense of what is right and
wrong in the heat of battle, while keeping the discretion to respond to
military necessity as required.

This implies the important point that
humanitarian law demands more of states than merely formal or token (even if highly
visible) efforts to comply with its strictures; instead, it requires that
states absorb the laws underlying principles on a deeper, moral level. When a
state defends a targeting decision purely by arguing that its actions were
"legal", this is not necessarily saying very much.

True, most militaries do make highly visible
efforts to comply with international law on targeting - by, for example,
issuing comprehensive manuals that go into considerable detail on the
legalities of target selection. But these efforts are not enough by themselves.
It is partly that these details allow for "technical" adjustments that suggest
less a concern for civilian lives than a wish visibly to comply with the law
for public-relations purposes. More fundamentally, well rehearsed efforts to
show compliance with the law can divert public attention from the deeper question of whether practitioners are asking
themselves the moral questions that they should be confronting.

The law on precautions over matters such as
targeting is meaningful only when accompanied by a certain moral ethos (as Tom Porteous, London director of Human Rights Watch, has
said, you can kill a lot of civilians without breaking international law). In
combat-zone conditions in particular, adherence to the letter of the law
without reference to its ethical foundations can lead to disastrous results on
every level - moral, strategic and political. In these situations, mere
compliance with the law is not enough.

In these circumstances, states that justify
accidental attacks on non-combatants solely by reference to the law run the
risk of eroding the law's normative foundations. This problem is longstanding
and wide-ranging: it applies to Nato operations in Kosovo in March-June 1999 and the Israel Defence
Forces (IDF's) assaults on Gaza in December 2008-January 2009 as well as to
the lengthier campaigns in Afghanistan and Iraq.

A
human voice

Moreover, the sheer density of legal arguments
that often follow an air-strike involving civilian deaths may act as a
convenient diversion for the perpetrating state, insofar as this can replace
any apparent sense of connection between the act and its human consequences.
This situation creates an opportunity for states and their representatives to
engage in what David Kennedy terms a "collaborative denial" by military
lawyers of their participation in the machinery of war. The result is to stoke
an underlying ethos of irresponsibility and detachment, which in part explains why
public disputes over targeting errors tend to acquire a repetitive and sterile
quality.

The starting-point of progress here may be to
acknowledge that the existing legal paradigm is no longer able to protect
non-combatants caught in conflict-zones. An over-reliance on this paradigm has
fostered the creation of an expert consensus between military and humanitarian
actors like the International Committee of the
Red Cross (ICRC), wherein
the two share the same vocabulary and pride themselves on their pragmatic
relationship. In consequence, these actors have come to negotiate the balances
inherent in humanitarian law in an insular way, thus reducing the law to a mere
language by which states communicate their preconceived policy-goals (see Eyal
Weizman, "Lawfare in Gaza: legislative
attack", 1 March 2009).

In this situation, what is needed is an
attitudinal and cultural shift that can break the evasions, the confusions and
the cycle of unresolved claims that surround incidents. The only groups capable
of initiating this are non-governmental organisations, for they alone collate
and disseminate the actual experiences of non-combatants caught in
conflict-zones.

This was evident during Israel's three-week
assault on the Gaza strip in 2008-09, when monitors from Human Rights Watch overcame the refusal of access to the territory to compile
detailed reports on the munitions being used by observing the bombardment from
a nearby hill. In addition, monitors from the B'Tselem group helped Palestinians to influence the terms of debate by
providing them with digital cameras on which to record human-rights abuses.
Such projects upset the calculus whereby states make targeting decisions, and
shift the dominant narrative away from the bombers and back to the bombed.

The United States military leaders in
Afghanistan may (if General Petraeus's briefing is a guide) belatedly be
understanding that attending to the needs of civilian populations in
conflict-zones makes strategic sense as well as being a humanitarian
imperative. The classic dichotomy in humanitarian law between military necessity and protecting
non-combatants cannot apply in cases where counterinsurgency operations depend
on winning political battles at a highly local level - for in these
circumstances, securing non-combatants' support is the most important military
objective of all.

The military commanders' political overlords
have yet to grasp this point. Until they
do, the only way of mitigating the recurring pattern of "tragic-accident"
air-strikes is to nurture a milieu in which it is politically unacceptable for
states to block investigations of questionable targeting decisions. This must
involve the entry of new voices (including those directly affected by the
air-strikes) into the public sphere, as part of the formation of a fresh humanitarian
consensus.